The principle behind sunshine laws is simple: Citizens of a democraticnation should be able to find out what decisions are being made by governmentagencies, including state universities. The reality of using these laws toobtain public documents is much more complex, especially withuniversities’ understaffed offices, reams of paperwork and wariness aboutreleasing anything that might hurt the institution’s public image.
Studies show that public universities and school districts come in secondonly to law enforcement agencies for worst responsiveness to public recordsrequests, said Dave Cuillier, chairman of the Society of ProfessionalJournalists Freedom of Information Committee and an assistant professor at theUniversity of Arizona.
“University lawyers are usually pretty good at coming up withinnovative approaches to secrecy and hiding things,” he said.
Universities do not think of themselves as government agencies, saidCharles Davis, executive director of the National Freedom of InformationCoalition and associate professor at the University of Missouri. Academiafosters an insulated, closed culture, he said, and universities know how to keepcertain records from the public eye if they want to.
“There are any number of ways to make it so painful for the requester’ either through price or through process ‘ that if you don’tgive up you might just die waiting for the thing,” Davis said.
The Student Press Law Center encountered a variety of roadblocks in aproject assessing institutions’ responses to public records. Working witha team of college journalism students, the SPLC sent out letters to more than100 public and private institutions seeking information about student misconductand discipline statistics.
Schools all received the same request letter, but some responded withdetailed spreadsheets while others did not respond at all. Virginia PolytechnicInstitute sent a thick packet of information a week after the request was sent;the University of Alabama responded on April 6 to say they were working on therequest originally sent Feb. 5.
Navigating the law
Some differences are the product of widely varying state sunshine laws,each with its own requirements and exemptions.
“It’s important to head into these situations armed to theteeth with the nuances of the law and how far it can work for you,” saidKerry Solan, a University of North Texas student who helped with the SPLCproject.
Public agencies in Colorado and Georgia have three days to respond to arequest, while in Maryland they get 30 days ‘ and in many states the lawrequires only that the response be “prompt.” Some states honorrequests by e-mail, some do not. Some states allow hourly fees for compiling therecords, others do not. In Delaware and Pennsylvania, universities are exemptfrom public records laws.
Complicating matters even more at colleges and universities is the federalFamily Educational Rights and Privacy Act, which prohibits educationalinstitutions from releasing students’ confidential educational records.Unlike the state exemptions that allow agencies to withhold information if theywant to, FERPA threatens institutions with loss of federal funding if they letprotected information leak out. The SPLC request was tailored to FERPAstipulations by requesting only summary data with no students’ names, butthe University of Texas at Austin and several other schools still cited the lawas a reason for delays or denying parts of the request.
Melany Aldridge, a paralegal who fills records requests at Eastern KentuckyUniversity in Richmond, Ky., said the legal staff has spent hours debating howmuch information they can release in response to certain records requests.
“We try to make a very conscious effort to provide the informationthat we are required to provide, while at the same time watching out for anindividual’s privacy rights,” she said.
Cuillier said the genuine concern for students’ privacy and FERPAcompliance gets out of hand when schools start withholding all records that evenmention students as “educational records” ‘ even things likeparking tickets or school lunch menus.
“They keep it hidden because of FERPA, and that’s justoutrageous,” Cuillier said. “It’s taking FERPA and warping itinto a mutant beast that’s keeping everything secret.”
The fees allowed by law also imposed a roadblock to some schools’data. Though most institutions provided the information free of charge, theUniversity of Georgia said the documents would cost $136 and the University ofMaryland estimated $653.51. North Carolina State University sent a three-pageletter explaining why the request would cost $7,577.30.
“People can use the pricing mechanism in state FOI law to theiradvantage in a huge way,” Davis said.
In many cases institutions acknowledged the request promptly but left the”processing” period open-ended. A month after requests were sent,the majority of schools had responded to acknowledge the request, but had notyet provided the documents.
Making a successful request
Opening up lines of communication is key, Cuillier said, because it is theonly way to find out whether the missing records are the captive of astonewalling university or just the victim of an overworked office.
Steve Parrott, director of university relations at the University of Iowain Iowa City, said making a request as specific as possible is helpful since theuniversity gets more than 200 requests each year.
“If you’re asking for a lot, be patient but persistent,”he said.
In the SPLC project, student journalists found that often the mostchallenging part of the process was finding out where to send the request andhow to phrase it. Some universities have a “public informationofficer,” some have a “records custodian,” and some have noparticular contact person. The department dealing with student misconduct mighthave a name like the “Office of Community Standards and StudentEthics” or it might just fall under the Dean of Students’ office.When a request was sent to the wrong department at the State University of NewYork at Binghamton, the school sent back a statistics spreadsheet full ofzeroes.
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“I’d say take some time and do a little research before youpick up the phone,” said Cesar Rojas, a student at the University ofWisconsin at Milwaukee who helped with the project.
After a frustrating experience getting shuffled from one official toanother in the University of Wisconsin system for the SPLC project, UW-Milwaukeestudent Kevin Lessmiller learned the value of connecting with the personhandling the request.
“It makes the process much easier when people on the other end of therecords request know who you are when you call to check on the status,” hesaid in an e-mail.
Treating the request as a conversation would eliminate severaluniversities’ responses that simply said there were “no documentsresponsive” to the request. Dropping off a request in person and lettingthe public records custodian look it over at the outset can make a bigdifference, Aldridge said.
“I think part of it is just keeping an open dialogue and not beingafraid to say why you’re looking for things ‘ you don’t haveto disclose fully, but a little bit of information would be helpful,” shesaid.
Reporters are likely to get the most information when they are civil andpatient, Davis said.
“You’re just not going to get anywhere going all’Woodward and Bernstein’ from the get-go,” he said.
“It’s just not going to help.”
Diplomacy and persistence
Some schools responded to the SPLC’s request even when they were notbound by law. Private institutions such as Yale College, Stanford University andDuke University sent links to online data, and the University of Arkansasprovided information even though Arkansas agencies are only required to respondto citizens of the state. Though Pennsylvania State University is considered a”state-related” school not subject to open records law, it sent athick envelope of information.
Bill Huston, the interim director of Judicial Affairs at Penn State, saidhe takes his role seriously as a steward of private information and educationalrecords protected under FERPA, but also does not see any reason to withholdstatistical information that could be helpful for research or identifyingtrends.
“If people are earnestly trying to obtain objective information aboutwhat’s going on, I think that’s a good thing to share,” hesaid.
Cuillier said these institutions understand that providing information isbeneficial because it builds trust in the community. Too often the discussionabout open government gets bogged down with nuances of the law instead offocusing on what makes sense to release, he said.
“I think that’s how we have to look at all this ‘ whatmakes sense to be public and what should be secret,” he said.
The law is not always necessary to fight reluctant institutions, either.Filing a lawsuit for records is always an option, but journalists have other,cheaper tools. Writing editorials is effective, Davis said, and now newspapershave space on the Internet to document the entire public records process, from acopy of the original request to a calendar showing how long a school has failedto respond.
“That is extraordinarily painful for college administrations thatare, at their heart, political beasts,” Davis said.
Students also found that plain old perseverance pays off. John Osborn, arecent graduate who coordinated the Humboldt State University students’portion of the project, encouraged students to be persistent with the schoolofficials so the request could not be purposely ignored or inadvertently lost inother paperwork.”Every time they send you an e-mail and they give youwhatever reason why they’re not going to give you the records, push themon it,” he said.